Who should decide what’s in a child’s best interest?

Robert MacDougall argues that parents should have the final say about what constitutes their child’s “best interest”.

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A recent court decision affirming the right of a First Nations family to make medical decisions for their own child and forgo chemotherapy treatment has faced a lot of criticism. Critics have urged that providing chemotherapy treatment to the child is in the best interest of the child and thus should be provided. These criticisms (see, for example, here, here, and here), however, have been relatively thin on ethical argument. Instead, these criticisms rely on what is taken to be an unproblematic notion of the “best interest of the child.” In a recent piece posted on Impact Ethics, for example, Amy Mullin took note of a number of factors: the family’s love and care for the child; Canada’s historical violations of aboriginal rights; and the difficult nature of the proposed chemotherapy. Mullin concluded that these factors could not “justify” letting the parents decide to forgo chemotherapy for their child, implying that the parents’ plan for treatment requires justification because it seems obvious that their actions are not in the “best interest” of their daughter.

Child with Halo

Norval Morrisseau, Child with Halo, Meaning Blessings of the Earth (1995). Private Collection. Norval Morrisseau: Return to the House of Invention. By Donald C. Robinson. Toronto, ON: Key Porter Books Limited, 2005.

In contrast to Mullin and others, I suggest the concept of “best interest” is one that should be determined by the parents themselves, and not by those outside the home and community. The most compelling reason for taking this position is well-demonstrated by the historical treatment of First Nations Canadians. Efforts at cultural assimilation of First Nations Canadians are not new. In the 1960s the Canadian government began forcibly removing First Nations Canadian children from their families in order to put them with white, middle class families. This practice has since been termed the “sixties scoop,” and was not abolished until the early 1980s.

I doubt that anyone would be willing to support such actions now, but it is worth considering why, exactly, the sixties scoop was objectionable. I submit that it was not simply the devastating consequences of the sixties scoop (such as widespread abuse) that made the sixties scoop morally reprehensible. Instead, the sixties scoop was morally reprehensible because it used force to advance children’s interests as determined by an outside set of values. In this respect, those who would force medical treatment of a child against the wishes of her parents are no different than those who executed the sixties scoop.

Intervening in the parent’s decision to forgo chemotherapy treatment for their child implies that the parents’ decision was clearly wrong, and that Western methods of determining the “best interests of the child” are superior to those of First Nations people. It is unsurprising then that some First Nations’ leaders have rallied around the family because they believe the rights of First Nations Canadians to live according to their own values are at stake. The imposition of Western interpretations of “best interest” is eerily similar here to that in the cases from the 1960s, in which the government also acted according to what it presumed was obviously in the best interests of First Nations’ children (see the comments of Shin Imai here).

One might argue that state intervention would not constitute an imposition of Western values on First Nations families and children. Instead, one might claim that state intervention merely prevents First Nations Canadians from imposing their values on their children, who are not yet old enough to decide for themselves whether to follow the Western medical paradigm or the traditional aboriginal one. But this assumes that the default position of the state should be to treat children in accordance with the Western paradigm until the child is old enough to decide for him or herself. Rather than assume the Western paradigm when making treatment decisions for First Nations children, it makes more sense to treat them according to the values of their own parents. It is far more likely that children raised by First Nations Canadians will eventually come to share a view of the good life and “best interest” that resembles that of their parents than anything else. And this, in turn, suggests that it is the parents’ determination of best interest that should be determinative in the final analysis.

Laws guaranteeing First Nations Canadians the right to live their lives and raise their families in accordance with their own values were presumably enacted to serve one primary purpose: to permit First Nations’ persons to live their lives as they choose even when society does not approve of their decisions. Rather than assume that such laws can be discarded when outside determinations of “best interest” seem obvious, we should consider that it was for precisely such circumstances that these laws were originally enacted.

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Robert MacDougall is an Assistant Professor of Philosophy at New York City College of Technology

4 comments

  1. Wayne Sumner · · Reply

    Perhaps Professor MacDougall might want to explain how dying of leukemia could be in any child’s best interest.

    1. Rob MacDougall · ·

      The question is about which treatment is in the child’s best interest. No one has suggested that it is in the child’s best interest to die of leukemia, as far as I know. The mother’s explanation of why she chose to pursue a traditional course of treatment can be found in part here: http://www.cbc.ca/news/canada/hamilton/news/stress-over-chemo-court-fight-uncalled-for-family-of-aboriginal-girl-1.2834674

    2. Wayne Sumner · ·

      The chemotherapy recommended by J.J.’s doctors has proven effectiveness in combatting her form of leukemia. The alternative therapies chosen by her mother have none. I can understand the argument that respect for the mother’s aboriginal rights must trump the child’s best interest (though I do not share it). What I cannot understand is the argument that the mother’s choice is actually in J.J.’s best interest. How can exposing a child to a high risk of death be in her best interest?

    3. Rob MacDougall · ·

      The mother says chemo is a poison (and it is), and that it will take her daughter out of the community for a long time (and it will). So there are serious burdens associated with traditional chemo. The center where she is going claims it has unparalleled success. Their chosen treatment will not expose her to as much (or possibly any) toxicity, and will likely be in an environment that feels less threatening to the family and their cultural tradition. They have reasons for distrusting western medicine, I imagine, many of which are probably pretty reasonable. And they haven’t completely ruled out chemotherapy if things get worse. But I don’t know if it is really relevant whether the treatment is actually in her best interest; for me the point is that using force to promote some view of her best interest, correct or not, is a bad thing in this case and is similar in kind to earlier abuses.

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